Lewis v. Barker

The opinion of the court was delivered by Taft, J. The defendant claimed that Spencer, a witness called for the plaintiff, set fire to the building burned, and asked him on cross-examination, if he had not stated in presence of one Merrill that a certain person had offered him one hundred dollars to burn a building in the town of Wells, and the witness replied that he had so stated ; he then asked him if it was true, and on the plaintiff’s objection, the testimony was excluded, the defendant stating that ho did not know that the offer applied to the store in question, or to any building that had been burned. We do not see how the fact that the witness had been offered a sum of money by some person to burn a building not the plaintiff’s and one that had not been burned, had any tendency to show7 that he, the witness, burned the plaintiff’s store. It was wholly irrelevant, and the evidence to prove it properly excluded. It might not have been error for the court in its discretion as a part of the cross-examination of the witness to have admitted the testimony, but it was not error to exclude it. It being a collateral fact the defendant was bound by the answer of the witness, and could not contradict it, and the testimony of Merrill for that purpose rightly rejected. The next error assigned was the refusal of the court to permit [23] the defendant to show that Spencer refused to work for him the day after the fire. This testimony was not material upon any of the issues in the case ; for, although “ Man goeth forth unto his work and to his labor until the evening;” (Ps. civ, 23,) yet a refusal to do so was no evidence that Spencer burned the plaintiff’s building. The plaintiff claimed that the defendant had caused his goods to be largely over insured, and then burned them, and attempted to defraud the insurance companies by making claims for goods not destroyed, &c.; and the evidence tended to show this, and tended to show that he attempted to recover for Gargling Oil, that he knew was not insured, and that he knew had not been burned ; although the postal card was written after the fire, we think the attempt to defraud the company into paying him for the oil, and the owners of the oil into not collecting it of him, was so connected with the main transaction as to make any part of the attempt admissible whether made before or after the fire. It was evidence relative to the scheme,, which the jury found he had entered into, for the purpose of swindling the insurance companies, relative to the goods that the parties supposed were in the store at the time of its destruction. We think there was no error in permitting the card to be read; as the card was properly in evidence, the request of the defendant that it could not be considered by the jury for any purpose should not have been complied with. This last point is the only one insisted upon with respect to the exceptions taken to the charge. Judgment affirmed.